People v. Sobiek

Majority - Bray, J.

1. Yes, a partner may be found guilty of grand theft for embezzling or stealing property from the partnership. The court held that the prior 'settled law' stating a general partner could not be convicted of embezzling partnership property was based on dicta from earlier cases (People v. Hotz, People v. Foss, People v. Brody) and misinterpretations of the California theft statutes. Penal Code section 484, while requiring property to be 'of another' for larceny, does not impose this specific requirement for fraudulent appropriation (embezzlement). Furthermore, Penal Code section 506, which lists categories of persons guilty of embezzlement, includes 'person otherwise entrusted with or having in his control property for the use of any other person,' which can encompass a partner entrusted with partnership property. The court emphasized that the 'wholly of another' interpretation is not mandated by California statutes and aligns with the Model Penal Code's view that 'property of another' includes property in which the actor also has an interest but is not privileged to infringe upon. The court also noted the recent trend in case law to recognize unincorporated associations as separate legal entities, citing White v. Cox, which supports treating the Empire Investment Club as a separate entity for determining 'property of another.' Given Sobiek's singular role as agent for the club, it is just to treat the club as a separate entity. 2. No, the respondent was not denied his right to a speedy trial due to pre-indictment delay. Citing United States v. Marion, the court reiterated that the Sixth Amendment right to a speedy trial does not apply to the period prior to arrest or indictment. For a pre-indictment delay to violate due process, the defendant must show (1) no legitimate reason for the delay and (2) actual prejudice from the delay. Sobiek failed to demonstrate either. The district attorney's office provided an affidavit indicating an ongoing investigation, which is a legitimate reason for delay, and Sobiek's claim of prejudice due to restitution and understanding that no prosecution would follow was dismissed, as Penal Code sections 512 and 513 state that restoration of property is not a defense to embezzlement. 3. No, the application of Penal Code section 487 to partners is not violative of the ex post facto clauses of the United States or California Constitutions. The ex post facto doctrine applies to legislative actions, not judicial constructions of laws, unless such construction is an unforeseeable judicial enlargement of a criminal statute applied retroactively (Bouie v. City of Columbia). The court found its interpretation of grand theft as applied to partners to be a reasonable clarification of existing law, not an unforeseeable enlargement. It analogized to People v. Ashley, where a false promise was recognized as a false representation of fact after prior misinterpretations, concluding that Sobiek had fair notice of the criminality of his conduct because 'common social duty' would have forewarned him against stealing his partners' property.